An attorney inquires whether his belonging to a barter
association would comport with the Code of Professional Responsibility. In payment for his
services he would receive "trade dollars" or "units" that could then
be used to obtain goods or services from other members of the association. Members pay a
join-up fee, annual dues, and a percentage on all "purchases" to the
association. The organization promises that if it is not successful in bringing the new
member a certain level of "units" during the first year, the membership fee and
dues will be refunded.

If an attorney may properly belong to a barter association, can he pay court costs
himself and receive barter units in payment for those costs?

Discussion

Bartering in a one-on-one situation has been practiced throughout history and has been
and remains ethically permissible for attorneys. The new form of barter associations,
however, presents a number of ethical problems. The barter association promises to provide
its attorney members with a certain level of business or refund their fees and dues. This
guarantee violates DR 2-103(E): "A lawyer shall
not knowingly assist a person or organization that recommends, furnishes, or pays for
legal services to promote the use of his services . . . ." The barter association
does not meet the requirements of any of the exceptions to this disciplinary rule. In
fact, one of the association's rules and regulations provides for a bonus to members who
introduce and sponsor new members.

Participation in the barter association also violates DR 2-103(C) which bars a lawyer
from giving anything of value to an organization to recommend or secure his employment.
The entire thrust of the barter group here is to promote the use of its members' services.
The more business generated among its members, the more profit the barter organization
makes. The membership fee, annual dues, and percentage fee on each transaction, which an
attorney member would be required to pay, must all be considered as the giving of value to
secure employment.

Additionally, the percentage charge on each transaction may involve an impermissible
sharing of legal fees with a non-lawyer. DR 3-102.

The rules of the exchange do not contemplate the duty of an attorney to refuse
employment in some circumstances as expressed in EC 2-30
and DR 2-109. Since fees paid to the exchange by a
lawyer member are based upon the employment of the lawyer by other exchange members and
since the lawyer's membership is subject to cancellation or recall by the exchange . . .
the lawyer may not have sufficient freedom in refusing a member's case.

Another possible problem could arise in the termination of a lawyer as a member of the
exchange. e.g., does the lawyer have a duty to continue with the representation of an
exchange member/client or can he withdraw?

There are also potential conflict of interest problems depending upon the definition of
the lawyer's relationship with the exchange and its members. e.g., can the lawyer
represent an exchange member against the exchange, a member against another member, or a
nonmember against a member? ABA Comm. on Ethics and Professional Responsibility, Informal
Op. 1430 (1979).

Since the answer to the initial question is no, the Committee does not address the
second question.

Conclusion

Bartering on a one-to-one basis is ethically permissible. However, participation in a
barter association in which the attorney would exchange his services for barter units that
would then be used to obtain goods or services from other members of the association, with
a percentage on all purchases being paid to the association, is ethically improper. The
committee does not address whether a bartering organization may be devised that would
satisfy the requirements of the Code of Professional Responsibility. (9-0.)